U.S. v. Cates, 90-2918

• Decision Date: 31 January 1992
• Docket Number: No. 90-2918,90-2918
• Citation: 952 F.2d 149
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Edward Lee CATES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 149

952 F.2d 149

UNITED STATES of America, Plaintiff-Appellee, v. Edward Lee CATES, Defendant-Appellant.

No. 90-2918.

United States Court of Appeals Fifth Circuit.

Jan. 31, 1992.

Robert W. Sneed, Jackson, Miss., for defendant-appellant.

Paula C. Offenhauser, Asst. U.S. Atty., Stephen Morris, U.S. Atty., Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before POLITZ, Chief Judge, KING, and JOHNSON, Circuit Judges.

KING, Circuit Judge:

Edward Cates appeals the district court's denial of his motion under 28 U.S.C. § 2255 to set aside his convictions and sentences. Cates had pled guilty pursuant to a plea agreement with the prosecutor. He alleges in this collateral attack that the government breached the plea agreement, and that the sentencing court failed to permit him to withdraw his plea. The district court found that no breach had occurred and that Cates was not entitled to withdraw his plea. Since the record on appeal supports this finding, we affirm the district court's denial of Cates's § 2255 motion.

I. BACKGROUND

Edward Cates pleaded guilty to one count of wire fraud (count one) and four counts of bank larceny (counts two-five) pursuant to a plea agreement which provided that the government would recommend a ten-year cap on any sentence of imprisonment, and would file no further charges against Cates. The terms of that agreement, including the recommended ten-year cap, were before the district court at the sentencing hearing. The government spoke at sentencing regarding the seriousness of Cates's crimes, his prior criminal history, and his failure to cooperate, but did not orally recommend a particular sentence.

The court sentenced Cates to five years imprisonment on count one, ten years each for counts two through five, with counts two and three to run consecutively, and the remaining terms to run concurrently with counts two and three--a total of twenty years imprisonment. The court also assessed a $1,000 fine for each count and a total of $100,000 restitution. Cates did not appeal his sentence.

Cates later filed a motion under former Fed.R.Crim.P. 35, requesting a reduction of his sentence to ten years or less. ¹ The government opposed the motion, stating, "the sentence imposed was totally justified." The court denied the motion without stating reasons.

Cates then filed this § 2255 motion. The magistrate found that the government had not breached the plea agreement and that Cates was not entitled to withdraw his plea following sentencing; the magistrate recommended that Cates's motion be denied. The district court adopted the magistrate's findings and denied the motion. Cates timely appeals.

II. DISCUSSION

A. Scope of § 2255

On the court's own motion, we requested additional briefing on whether and how the narrow scope of the § 2255 remedy, see Hill v. United States, 368 U.S. 424, 427-28 & n. 5, 82 S.Ct. 468, 470-71 & n. 5, 7 L.Ed.2d 417 (1962), affects this case. The role of § 2255 is clear:

Section 2255 ... provides that a prisoner in custody under sentence of a federal court may file a motion in the "court which imposed the sentence to vacate, set aside or correct the sentence." The statute states four grounds upon which such relief may be claimed: (1) "that the sentence was imposed in violation of the Constitution or laws of the United States;" (2) "that the court was without jurisdiction to impose such sentence;" (3) "that the sentence was in excess of the maximum authorized by law;" and (4) that the sentence "is otherwise subject to collateral attack."

Hill, 368 U.S. at 426-27, 82 S.Ct. at 470-71. The scope of the remedy under § 2255 is commensurate with that of the writ of habeas corpus. Id. at 428 n. 5, 82 S.Ct. at 471. In this case, Cates alleges that his plea of guilty was involuntary, and thus in violation of the Due Process Clause of the U.S. Constitution, because it was based in part on conditions unfulfilled by the prosecutor and judge.

It is well settled that a guilty plea based on a breached plea agreement is subject to collateral attack under the writ of habeas corpus. "[W]hen the prosecution breaches its promise with respect to an executed plea agreement, the defendant pleads guilty on a false premise, and hence his conviction cannot stand[.]" Mabry v. Johnson, 467 U.S. 504, 509, 104 S.Ct. 2543, 2547, 81 L.Ed.2d 437 (1984) (citing Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 498-99, 30 L.Ed.2d 427 (1971)). "The law is clear that an unkept plea bargain is a valid basis for the grant of the writ of habeas corpus...." Hayes v. Maggio, 699 F.2d 198, 203 (5th Cir.1983) (citing Blackledge v. Allison, 431 U.S. 63, 76, 97 S.Ct. 1621, 1630, 52 L.Ed.2d 136 (1977)); see also Smith v. Blackburn, 785 F.2d 545, 548 (5th Cir.1986).

Such a plea is also necessarily subject to collateral attack under § 2255. "A guilty plea, if induced by promises or threats which deprive it of the character of a voluntary act, is void. A conviction based upon such a plea is open to collateral attack." Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 513, 7 L.Ed.2d 473 (1962); see also United States v. Birdwell, 887 F.2d 643, 645 (5th Cir.1989); United States v. McCord, 618 F.2d 389, 392 (5th Cir.1980); accord United States v Quan, 789 F.2d 711, 713 (9th Cir.), cert. dismissed, 478 U.S. 1033, 107 S.Ct. 16, 92 L.Ed.2d 770 (1986); Knight v. United States, 611 F.2d 918, 921 (1st Cir.1979).

B. Breach of the Plea Agreement

On appeal, Cates alleges four separate breaches of the plea agreement by the government. First, he contends that the government, at the sentencing hearing, provided inaccurate information regarding Cates's cooperation. Second, he contends that the government's opposition to his Rule 35 motion constitutes a breach of the government's promise to recommend a ten-year maximum sentence. Third, he argues that the comments made by the prosecutor at the sentencing hearing constitute a further breach of the same promise. Finally, he contends that the government failed to fulfill its affirmative obligation to recommend a ten-year cap on his sentence. ² We address these claims in turn.

1. Preliminary matters

The first two issues are easily disposed of. Cates's argument regarding the government's provision of information about his cooperation is not cognizable as a breach of the plea agreement. The plea agreement included no terms requiring Cates's cooperation or requiring the government to refrain from commenting on any aspect of Cates's cooperation. The fact that the government presented information to the court regarding Cates's lack of cooperation is entirely irrelevant to the plea agreement's validity. Cates presents no other basis for his challenge to the government's provision of information regarding his cooperation. ³

Cates did not raise the Rule 35 contention before the district court in his § 2255 motion. We will not consider for the first time on appeal an argument not presented to the district court. Earvin v. Lynaugh, 860 F.2d 623, 627-28 (5th Cir.1988), cert. denied, 489 U.S. 1091, 109 S.Ct. 1558, 103 L.Ed.2d 861 (1989); United States v. Houston, 745 F.2d 333, 334 (5th Cir.1984), cert. denied, 470 U.S. 1008, 105 S.Ct. 1369, 84 L.Ed.2d 388 (1985); Hall v. Maggio, 697 F.2d 641, 643 (5th Cir.1983); United States v. McKnight, 693 F.2d 476 (5th Cir.1982).

2. The government's comments at sentencing

At the sentencing hearing, the government argued that Cates's prior record suggested that rehabilitation and deterrence were not meaningful determinations in arriving at an appropriate sentence. The prosecutor also asserted: "It seems to me that Mr. Cates has in his head, in the words of Auden, 'I like committing crimes. It seems the system likes forgiving them. Really, the world is admirably arranged.' ... [P]rotection of the public is probably the only consideration that can be served at this stage."

The magistrate found that "[t]his language does not infer [sic] that a ten year sentence would be insufficient." The record supports this conclusion, as does simple logic. The prosecutor's comments did not recommend or suggest a sentence of longer than ten years. The comments, in conjunction with the recommendation of a ten-year cap, suggest that the government hoped the judge would impose the maximum sentence rather than any amount less than ten years. The government's asserted interest in protection of the public presumably would have been served by the recommended ten-year sentence.

We note also that Cates's argument in this respect resembles the claim disposed of by the Supreme Court in United States v. Benchimol, 471 U.S. 453, 455, 105 S.Ct. 2103, 2104-05, 85 L.Ed.2d 462 (1985). There, the Court held that an agreement to recommend a particular sentence did not require the government to state the justification for that sentence, or to argue for the sentence "enthusiastically," when the plea agreement did not so provide. The Court held that a plea agreement must be fulfilled by the parties, but that the measure of compliance would be the agreement's express terms, not any "implied-in-law" terms read into the agreement by later courts. Id. In the light of Benchimol, we cannot hold that the government's promise in this case--to "recommend at sentencing a ten-year cap be [sic] appropriate"--precluded the prosecutor from arguing for a strict, yet indeterminate, term of imprisonment.

3. Recommendation of a ten-year cap

Cates argues that the government breached the express terms of his plea agreement because it failed to recommend a ten-year cap on his sentence at the sentencing proceeding. The magistrate found that "the recommended sentence was presented to the Court at sentencing;" elsewhere the magistrate stated "[t]he recommended sentence was clearly before the court even though not repeated vocally." The magistrate's findings were adopted by the district court.

We review the...